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Judgment
It appears that in four Inter Colleges, Principals retired, whereupon the senior-most lecturers thereof were asked by independent resolutions of the Committees of Management of the Colleges to discharge the duties of Principals on officiating capacity. In the present writ petition, those senior-most lecturers, one of whom has retired, are seeking payment of salary in the scale of Principal. Their entire case is based on a judgment rendered by a Division Bench of this Court in Special Appeal No. 45 of 2010 on 15th April, 2010. In that case, the Division Bench noticed sub-Regulation (3) of Regulation 2 contained in Chapter II of the Regulations made under the Uttar Pradesh Intermediate Education Act, 1921. The said sub-Regulation provides as follows:
Where the temporary vacancy in the post of Head of Institution is for a period not exceeding 30 days, the senior-most teacher in the highest grade may be allowed to work as acting head of institution, but he shall not be entitled to pay in the scale higher than the scale of pay in which he is drawing salary as such teacher.
The Division Bench felt that when a person has been asked to work as acting Head of Institution for a period exceeding 30 days, he should be paid salaries attached to the post in which he has been asked to act, otherwise such an action would be arbitrary in terms of Article 14 of the Constitution of India.
We think that Division Bench, while holding thus, did not take notice of sub-Regulation (1) of Regulation 2 of the said Regulations, which is as follows:
The post of Head of Institution shall, except as provided in Clause (2), be filled by direct recruitment after reference to the Selection Committee constituted under Sub-section (1) of Section 16-F or, as the case may be, under Sub-section (1) of Section 16-FF:
Provided that in case of any institution not being an institution referred to in Section 16-FF a temporary vacancy caused by the grant of leave to an incumbent for a period not exceeding six months or by death, retirement or suspension of an incumbent occurring during an educational session in the post of the Head of Institution shall be filled by the promotion of the senior most qualified teacher, if any, in the highest grade in the institution.
Therefore, in terms of sub-Regulation (1) of Regulation 2, the post of Head of Institution is to be supplied only by direct recruitment. The Proviso appended thereto makes an exception to the said requirement of direct recruitment. It authorizes, in the circumstances mentioned therein, to give promotion. Once a person is promoted, he fills up the vacant post and that is also the mandate of the Proviso. If it is decided not to promote and, accordingly, recourse is taken to sub-Regulation (3) and, accordingly, the senior-most teacher is allowed to work as an acting Head of Institution, it is contemplated that the vacancy is of temporary nature and is likely to be filled up within a period not exceeding 30 days. Consciously, therefore, instead of promoting the senior-most qualified teacher, the senior-most teacher is allowed to work as acting Head of Institution. When the Regulations provide two mechanism, one to supply the vacancy by promotion and the other to supply the vacancy on acting basis, with clear indication as regards right to obtain salary, if a decision is taken to supply the vacancy on acting basis, can it be contended that since the period of acting has exceeded the period of acting contemplated in the Regulation, the person acting is entitled to salary equal to the promotee to the post, when consciously it was decided not to promote. This aspect of the matter requires to be considered and, accordingly, we refer the matter to a larger Bench.